Linking to copyright infringing material should not constitute copyright infringement itself, says EU court advisor

Out-Law News | 07 Apr 2016 | 5:08 pm | 1 min. read

The act of posting a link to a website that features "freely accessible" copyright infringing content should not itself be classed as an act of copyright infringement, an advisor to the EU's highest court has said.

Under EU copyright laws copyright holders have the exclusive right to control any "communication to the public of their works".

The act of posting a link to copyright infringing content "does not constitute an act of communication to the public", advocate general Wathelet said in a new non-binding opinion issued on a case to be ruled on by the Court of Justice of the EU (CJEU).

The legal advisor said that position remains the case, under EU copyright laws, regardless of whether the person posting a link to copyright infringing content that is freely accessible on another website "is or ought to be aware that the copyright holder has not authorised the placement of the works in question on that other website or that, in addition, those works had not previously been made available to the public with the copyright holder’s consent".

Advocate general Wathelet said that the act of posting a link to a website that "facilitates or simplifies users’ access" to copyright infringing content also "does not constitute a ‘communication to the public’" under EU copyright laws.

The case the CJEU will rule on stems from a dispute raised before the courts in the Netherlands and involves the publisher of Playboy magazine, Sanoma, and a website operator, GS Media.

According to the advocate general opinion published by the CJEU, GS Media posted a link to another website where photographs commissioned by Sanoma that were protected by copyright could be downloaded by internet users. GS Media refused Sanoma's request to remove its link from its website, prompting the publisher to initiate legal action for copyright infringement against the website operator.

A court in the Netherlands has asked the CJEU to help it interpret EU copyright laws in the context of hyperlinking. The CJEU is expected to issue its formal ruling in the case later this year. It often follows the approach recommended by its advocate generals, although it is not obligated to do so.

In 2014 the CJEU ruled that website operators do not engage in copyright infringement where they link to copyrighted content hosted elsewhere on the internet without the rights holders' permission to do so where that content is "freely available".